Barbarians at the Pool Gates!

Safely Reopening Common Areas

By: Joshua Gerstin, Esq.

Three overriding concerns should be the focus of Florida’s community associations as they face ever-increasing demands from members to reopen their common areas: 1) health, 2) safety, and 3) liability. Operating at warp speed should not be a community association’s re-opening objective. Florida’s community associations should strive for a slow but steady, staggered, and thoughtful re-opening of common areas.

Safety First.

The first step in reopening common elements is for a community association to check with their local governing authorities to determine whether there are any restrictions on opening common areas in their city or county. Although Governor DeSantis entered Florida into Phase 3 of the pandemic, the Governor’s most recent order primarily applies only to businesses.  The Governor’s Phase 3 order did not overrule the authority of a county or city from imposing or maintaining its pandemic ordinances pertaining to community associations.  If a community association is planning to reopen a common area, it should pass a board resolution and/or emergency rules with procedures mimicking the requirements of Governor DeSantis’s Executive Orders, local orders in your jurisdiction, and health guidelines from the Center for Disease Control (“CDC”).

Mitigating Liability, Second.

The pandemic is endemic and most community association insurance policies do not cover COVID-19/infectious disease transmission. Community associations must strike a balance between reopening common areas and mitigating the liability risk. As part of a community association’s emergency rules authority, requiring members and guests to sign an attorney-drafted release and hold harmless agreement as a pre-condition for using the common areas is a good idea. However, releases and hold harmless agreements will not entirely insulate community associations from being sued and/or exposed to liability. The best way to avoid liability is to not maintain conditions at your community association that contribute to spreading the virus. Therefore, regardless of requiring releases and hold harmless agreements, community associations must strictly adhere to state and local ordinances, as well CDC guidelines.  

Sources of Information.

Most community associations will find the following resources helpful as they reopen their community association’s common areas Although the information provided is valuable, please check with your association’s attorney before taking any action.

Community Association’s Institute “guidelines for reopening common areas, amenities, and operations. Modify and adapt a letter, sign, and operational advice to your community” is available at:  https://www.caionline.org/pages/coronavirus.aspx

Community Association’s Institute  “Healthy Communities guide, a summary of practical advice and best practices from the Centers for Disease Control and Prevention (CDC) relevant to COVID-19 and community associations.” is available at: https://www.caionline.org/pages/coronavirus.aspx

All state and county emergency and executive orders can be found at:  https://covid19.lobbytools.com/regions

Center for Disease Control COVID-19 can be found at: https://www.cdc.gov/coronavirus/2019-ncov/index.html

 

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2020 Hurricane Season, the Definitive Checklist for Florida’s Community Associations.

– By Joshua Gerstin, Esq.

(Click here for .pdf version with “checkable” fields for your ease of use!)

 

 Hurricane season begins on June 1st and lasts 5 months, with storms typically peaking in August and September. Due to COVID-19, this hurricane season will be unlike all others.  Properly preparing for this unique hurricane season could truly be a lifesaver. The following hurricane preparation checklist is a combination of over twenty years of community association legal experience and new COVID-19 precautions:

 Things to do now:

COVID-19 Related Hurricane Checklist:

—      Start stocking up on cleaning supplies now. Most stores have limited cleaning supplies or only allow a limited number of purchases.  It is going to take a lot longer to obtain all the cleaning supplies you will need.

—    An abundance of hand Sanitizer, soap, disinfectant spray, disinfectant wipes and face masks are the COVID-19 supplies your community association will need if a hurricane strikes.

—   Plan for extended power outages (generator fuel, ice, flashlights, extra petty cash and installing a landline).  Although FPL has been burying power lines and improving the electrical grid, additional workers will be needed to restore power after a hurricane.  COVID-19 testing of these workers will cause delays and will limit the size of this additional workforce as infected workers are turned away.

—  Purchase locks and non-electronic security equipment to keep buildings and common areas secure from vandalism or looting during an extended power outage.

—  Go to the app store for your mobile phone and download the official FEMA app.  A face-to-face meeting with an adjuster after a hurricane strikes is unlikely. FEMA has made available a phone app that can allow insurance companies to provide estimates without an in-person visit. When the app is running, it can take photos and measurements and gather additional information as you walk through your common areas.

—  Confirm shelter locations, evacuation routes and remind residents to take their pets if they evacuate.  Due to COVID-19 shelters and evacuation routes across Florida have changed. Officials are considering protocols for shelters that range from separating people based on temperature checks to non-congregated sheltering in hotels. Direct residents to https://www.cdc.gov/disasters/hurricanes/covid-19/public-disaster-shelter-during-covid.html for further information about staying virus free in a shelter.

—  Establish a designated area that allows for social distancing where residents can meet for more information after the disaster.

—  Inform residents in writing the extent of help the association will be providing (and not providing) during and after a hurricane. Urge your residents to begin their own preparation and evacuation plans.

—  Update your contact list of owners, board members and staff.  Ensure the list contains the correct contact information for seasonal residents.  Print out the list and place it in a safe location (having it on your computer will do you no good when the power is out).

—  Similar to the children’s game “telephone”, establish amongst the board of directors a chain of command for communications in the event a hurricane strikes. When a hurricane strikes, time should not be wasted by having to contact each board member or answer each board member’s non-emergency information inquiry.

—  Update your vendor list, print it out and place it in a safe location (having it on your computer will do you no good when the power is out).

—  Ensure your building’s plans and blueprints are in a safe location with easy access for first responders or insurance agents. Highlight shut-off valves, power-boxes, lift stations and debris staging areas.

—   Service your association’s lift stations now to avoid sewage overflow if a hurricane strikes.

—   Confirm all of your association’s data is being regularly backed up to the cloud or offsite.

—   Copies of your association’s insurance policies, claims filing information and insurance agent’s contact information should be in paper form and secured in a safe location.

—   Keep handy a list of all bank account numbers, branch locations and authorized association signatories.  Have the board authorize an increased petty cash amount to be stowed away with your hurricane supplies. Credit cards, debit cards and computer checks will not be available if the power is out.

—  Enter into contracts with vendors you will use during an emergency (water removal, debris cleanup repairs, etc.) to ensure they are available immediately after an “all clear” is given. Hurricane Irma struck during the same season a hurricane hit Puerto Rico and Texas.  Many community associations were unable to secure vendors for the cleanup of debris and water because their vendor was assisting with other hurricanes.

—  Pre-determine a staging area for debris and contract for debris dumpsters.

—  Print out the instructions for updating the Association’s website and keep them in a safe location. Designated a member or director to provide frequent website updates regarding your association after a hurricane strikes.  Off-site or seasonal residents will be searching for information and you do not want them contacting management if possible.

—  Print out the instructions for updating the Association’s voicemail and keep them in a safe location. Residents and their loved ones will be calling for information and your association’s outgoing message on its voicemail is an effortless way to keep them updated.

—  Make plans to shut down and secure clubhouses and other amenities, store furniture and to shutoff electric and water.

—  Confirm all drainage areas and lines are working at full capacity.

—  With proper socially distancing, establish a designated area within the association for posting hurricane-related updates.

—  If you have a manned gate, make sure the attendants and the residents know at what point the attendants will be sent home and that the gates will be locked in the open position to provide emergency ingress and egress.

—  Buy battery operated walkie-talkies and consider having a landline installed. Past hurricanes have taught us battery-operated walkie-talkies and a landline are the only communication methods that can be relied on if the power goes out.

—  Stock up on and securely store gasoline, tarps, duct tape, sandbags, submersible water pumps, chain saws, water, flashlights, weather radio, batteries, and a video camera for documenting storm damage.

—   Consult your elevator company on how to properly secure your association’s elevators.

—   Ensure you have keys to each unit in your building.

—  Have your Association’s trees trimmed, including the removal of all coconuts, seeds or potential hurricane “missiles”.

—  Have all dead and dying trees removed. Consider waiting to replant any new trees until after the hurricane season. All new trees should be firmly staked and secured

—  Identify residents who need special care and contact those owners and their families to determine if arrangements have been made for them.  Remind all residents the elevators may need to be shut down or may not operate for an extended period due to a power outage.

—  Inform residents in writing what to expect from the association before, during and after a hurricane strikes.  Advise residents to communicate with friends and relatives elsewhere who will be concerned. Association offices oftentimes become overwhelmed after a storm with relatives calling from out of state to check on them.  In the event of a mandatory evacuation, remind owners to keep all receipts related to additional living expenses, such as hotel accommodations and gasoline if an evacuation is mandated.  These receipts may be reimbursable as part of an eventual insurance claim.

When a hurricane warning has been issued:

—  Bring all objects inside that may be tossed about by wind or rain.

—  Check all drainage areas and remove any debris that would restrict water flow.

—  Lower the water in all pools, fountains and other water features.

—  Shut down, close and securely lock all pools, water pumps (pools, fountains irrigation, etc.)  and recreation areas.

—  Videotape or photograph the building and all common areas with a date stamp to accurately document the property’s pre-storm condition for insurance purposes.

—  Ensure all construction dumpsters are empty.  If possible, arrange to have your regular dumpster emptied.

—  Strategically place sandbags in areas where flooding is anticipated.

After the hurricane has passed:

—   Stay calm, triage the association and focus only on life/safety issues.

—   After the life safety issues are stabilized, focus on damage mitigation and recording the remediation work with photographs and video.  Contact your vendors to come into the association to begin removing debris and items that are wet (drywall).

—  Consider shadowing contractors and vendors as they inspect or work on individual units to avoid stolen property claims later.

—  Continue documenting and recording the damage and remediation efforts for insurance purposes.

—  In times of need, unscrupulous people always try to take advantage. Avoid vendors, contractors and third-party/private insurance adjusters soliciting your association’s business.  If you have no choice, take the time to fully vet each one before signing anything.

—  With the assistance of an attorney experienced in community association hurricane claims (joshua@gerstin.com), contact and file a claim with your association’s insurance carrier.

 

Click here for .pdf version with “checkable” fields for your ease of use!

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To Open or Not to Open, that is the Coronavirus Question.

April 29, 2020   (Click here for .pdf version)

Is it Time to Dip a Toe into the Community Pool?

 

As state and local governments begin gradually easing their lock down and coronavirus related restrictions, community associations are struggling to decide when and how to start reopening their community pools and tennis/pickleball courts. In doing so, each community association is going to have to strictly follow a patchwork of federal, state and sometimes local/city restrictions and guidelines.

There is no need to rush, there are no federal, state or local mandates requiring community associations to open their pools and tennis/pickleball courts. In fact, as long as the federal or state emergency declarations remain in place, community associations can decide to keep their pools and tennis/pickleball courts closed. For some community associations, the governmental requirements to open their pools and tennis/pickleball courts will be too costly or impractical at this point to consider.

The first step to determine the guidelines for opening your community association’s pool and tennis/pickleball court is to locate the state, county and local/city emergency orders governing your community association. The best place to locate the most up to date state, county and local/city emergency orders is at: https://covid-19.lobbytools.com/. For your convenience, I posted the emergency orders pertaining to community association pools and tennis/pickleball courts for Broward County (click here) and Palm Beach County (click here). We are also expecting an order from the governor today as well.

Each community association should review the orders governing their location with the assistance of their attorney. In doing so, you may notice some governmental orders conflict. For example, a city a may require an extra precaution not required by the county. In such, instances, you should check with your attorney before proceeding. As a general rule, the more restrictive requirement should be followed.

Following are some highlights from the Palm Beach County and Broward County emergency orders pertaining to the opening of pools and tennis/pickleball courts:

Palm Beach County:

Continued adherence of CDC guidelines, including while in the pool, is required. Community associations are responsible for ensuring compliance. Therefore, if members violate the guidelines both the member and the association could be fined. The CDC guidelines for social distancing can be found here:

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html

A. Tennis Courts: Tennis and outdoor racquet facilities shall reopen provided that CDC Guidelines, including all social distancing guidelines, are adhered to. In addition, the following restrictions shall apply:

1. Singles play only is permitted. No congregating on the court or sidelines is permitted.

2. Locker room and shower facilities shall remain closed. Restrooms must be cleaned and disinfected regularly throughout the day. Soap and water or hand sanitizer and/or disinfectant wipes shall be provided in each restroom.

3. It is the responsibility of staff or management to ensure compliance with this order.

B. Community Pools: Community pools shall reopen provided that CDC Guidelines, including all social distancing guidelines, are adhered to. In addition, the following restrictions shall apply:

1. Pool capacity shall be limited to ensure that social distancing in accordance with CDC Guidelines is maintained at all times.

2. Locker room and shower facilities shall remain closed. Restrooms shall be cleaned and disinfected regularly throughout the day. Soap and water or hand sanitizer and/or disinfectant wipes shall be provided in each restroom.

3. Pool deck seating or lounging shall be restricted to ensure social distancing in accordance with CDC Guidelines.

4. One or more facility staff or management must be present at each facility location to monitor and ensure compliance with the restrictions within this order.

Broward County:

Continued adherence of CDC guidelines, including while in the pool, is required. Community associations are responsible for ensuring compliance. Therefore, if members violate the guidelines both the member and the association could be fined. The CDC guidelines for social distancing can be found here:

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html

A. Pools. The pool deck and pool can only be used by current residents; six (6) foot social distancing CDC guidelines are adhered to; pool deck and pool occupancy are limited to no greater than 50% capacity; and either:

(1) the use of the pool deck and pool are supervised by a sufficient number of
employees or other person(s) designated by the housing development during the hours
in which they are used to ensure compliance with the requirements of this section, and
employees or other designees of the housing development sanitize the facility’s pool
chairs, railings, gates, tables, showers, and other equipment at the pool and pool deck on
a regular basis;

or

(2) all furnishings are removed from the pool deck.

B. Tennis. Use of tennis courts and pickle ball courts is limited to residents only shall be limited to a maximum of two people on the court at any one time (i.e., singles play only), and disc golf courses limited to singles play. Basketball courts are limited to individual use (no multiplayers or pick-up games are permitted, with the exception of games such as “horse”), and social distancing must be maintained at all times. Racquetball courts are limited to a maximum of one person on the court at any one time.

Stay tuned for more. In the meantime, be safe and be well.

 

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